Bornstein v. Doherty

• Decision Date: 07 January 1910
• Citation: 204 Mass. 280,90 N.E. 531
• Parties: BORNSTEIN v. DOHERTY et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

204 Mass. 280

90 N.E. 531

BORNSTEIN v. DOHERTY et al.

Supreme Judicial Court of Massachusetts, Suffolk.

January 7, 1910

COUNSEL

Clarence F. Eldredge and Harold Caverly, for appellants.

Elisha Greenhood and M. L. Lourie, for appellee.

OPINION

KNOWLTON C.J.

This is a bill to enjoin the defendants from the maintenance of a building upon a passageway, and from interference with the plaintiff's right of way, and with his right to the enjoyment of light and air, in the occupation of his adjacent property. The estates of the two parties formerly belonged to one Rust, and after his death they descended to his two children, Daniel S. Dickerman and Caroline Bibber, who held them as tenants in common. By a decree of the probate court bearing date April 28, 1884, founded upon a report of commissioners duly appointed by the court to make partition of the property between these two persons, which report was assented to in writing by them, the estate was divided, and the two parts set off to the brother and sister in severalth and the partition was confirmed. After stating the appraisal of the property, the report proceeded as follows:

'(1) To the said tenant in common, Daniel S. Dickerman, we have set off and assigned, and do hereby set off and assign, as and for his one-half thereof, the following portion of said real estate, to wit: A certain parcel of land with the buildings thereon [describing it], * * * together with the use of a passageway as appurtenant to said premises now existing in the rear of the estate hereinafter set off to the said Bibber, and running from these premises westerly to Endicott street; and we do hereby further set off and assign unto the said Dickerman an easement for air and light in the open space in the rear of the easterly house on said premises set off to said Carrie Bibber, to be appurtenant to the premises of the said Dickerman, which space is to remain free and unobstructed for the purposes of said easement. * * *

'(2) To Carrie, also called Caroline Bibber, the other of said tenants in common, we have set off as, and do hereby set off and assign as and for her one-half thereof, the portion of said real estate bounded and described as follows [describing it], * * * reserving to the said Dickerman the use of a passageway as appurtenant to his said estate now existing in the rear of these premises and running westerly to Endicott street; also the easement of air and light in the open space in the rear of the most easterly house on these premises, which space is to remain free and unobstructed for the purposes of said easement.'

The first...